Opinion
B305596
08-31-2022
XIN BAI, Plaintiff and Respondent, v. RODEO CONCIERGE, INC., et al., Defendants and Appellants.
Law Office Of Patrick Thomas Santos and Patrick Thomas Santos for Defendants and Appellants Rodeo Concierge, Inc., Simo Mohammed Amouchal and Mahmoud M. Attia. The Lunsford Law Firm and Loren L. Lunsford for Defendant and Appellant Jannik Olander Lorentsen. No appearance for Plaintiff and Respondent Xin Bai.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 708631, Michael L. Stern, Judge.
Law Office Of Patrick Thomas Santos and Patrick Thomas Santos for Defendants and Appellants Rodeo Concierge, Inc., Simo Mohammed Amouchal and Mahmoud M. Attia.
The Lunsford Law Firm and Loren L. Lunsford for Defendant and Appellant Jannik Olander Lorentsen.
No appearance for Plaintiff and Respondent Xin Bai.
ROTHSCHILD, P. J.
Appellants Rodeo Concierge, Inc., Simo Mohammed Amouchal, and Mahmoud M. Attia (collectively, Rodeo Concierge appellants) and Jannik Olander Lorentsen (collectively, appellants) appeal from a judgment against them in a civil lawsuit brought by respondent Xin Bai. The judgment held appellants jointly and severally liable to Bai based on several causes of action, including a claim under Civil Code section 3343.5, which addresses damages from unlawful motor vehicle subleasing. (See Civ. Code, § 3343.5, subd. (a).) Appellants also challenge the court's postjudgment order rejecting their proposed "settled statement on appeal"-"a summary of the superior court proceedings" that an appellant, under certain circumstances and with the approval of the court, may elect to use "as the record of the oral proceedings in the superior court, instead of a reporter's transcript." (Cal. Rules of Court, rule 8.137(a).)
Subsequent rule references are to the California Rules of Court.
Regardless of whether the court's statement was sufficient, failure by appellants to seek redress for perceived deficiencies in the statement by way of a petition for writ of mandamus deprives this court of jurisdiction to grant relief. In any event, whether we derive our understanding of the testimony presented at trial from the settled statement that the court certified or the appellants' proposed settled statement, substantial evidence supports the trial court's judgment on the unlawful motor vehicle subleasing claim as against the Rodeo Concierge appellants. We reject the Rodeo Concierge appellants' arguments that Bai suffered no damages, and/or that the court incorrectly held the Rodeo Concierge appellants jointly and severally liable. We further conclude the trial court's award of damages against the Rodeo Concierge appellants is supported by the unlawful motor vehicle subleasing cause of action alone, and thus need not assess the Rodeo Concierge appellants' arguments regarding the other causes of action against them.
As to Lorentsen, a person who is a party to the original lease is not among the persons who can be guilty of unlawful motor vehicle subleasing under Penal Code section 571. And to be civilly liable for unlawful subleasing, the person must be guilty under Penal Code section 571. (Civ. Code, § 3343.5, subd. (b).) Thus, because Lorentsen cannot be liable under the Penal Code, neither can he be civilly liable. We further conclude that neither the court's settled statement, nor any of the documentary evidence in the record, provides substantial evidence of key elements of the remaining causes of action against Lorentsen. We therefore reverse the judgment to the extent it holds Lorentsen liable. In all other respects, we affirm.
FACTS AND PROCEEDINGS BELOW
Unless otherwise indicated, the facts in our factual summary are those that are supported by either (1) both appellants' proposed settled statement rejected by the court and the statement the court ultimately certified, or (2) documentary evidence not affected by the differing proposed records of the testimony offered at trial, or (3) the reporter's transcript of the second phase of the trial, which is part of the record on appeal.
A. Original Lease Agreement Between Lorentsen and Nonparty Amazon Leasing, Inc.
In May 2014, Lorentsen leased a 2010 Ferrari 458 Italia vehicle from Amazon Leasing, Inc. (Amazon) pursuant to a five-year lease. The agreed-upon value of the vehicle was $195,000. The lease contained an option-to-buy at the end of the lease term and prohibited Lorentsen from subleasing the vehicle. Specifically, it provided: "YOU HAVE NO RIGHT TO ASSIGN AN INTEREST IN THE LEASE OR THE VEHICLE OR TO SUBLET OR LEND THE VEHICLE."
B. Sublease Agreement Between Lorentsen and Saghdejian/Exotic Car Affair
In May 2015, Lorentsen executed a sub-lease agreement with Saghdejian, who at the time owned Specialty Car Craft, Inc. The May 2015 sublease obligated Saghdejian to make a down payment of $10,000 and monthly payments of $3,000 to Lorentsen. At the end of the sublease, the vehicle was to be returned to Lorentsen. Lorentsen testified he was aware that Saghdejian would likely sublet it to others, but was not aware of any further details.
C. Lease Assumption Agreement Between Bai and Saghdejian
On March 30, 2016, 10 months after Lorentsen subleased the vehicle to Saghdejian, Saghdejian entered into a two-page "Lease Assumption Agreement" with Bai, a Chinese national attending college on a student visa in the United States. Bai was introduced to Saghdejian through a "Chinese-speaking facilitator and intermediary who interpreted for him," possibly with the assistance of the Rodeo Concierge appellants. Lorentsen testified that he was not aware of the lease assumption agreement or that Bai was a party to it until after it was executed.
Bai and Saghdejian signed the lease assumption agreement. The latter signed on a signature block for "ECA-Or.Steve S." "ECA" stands for Exotic Car Affair.
Below the two signature blocks, Saghdejian's full name, as well as an address, phone number, and email address are provided, without indication as to what this information pertains to. The agreement required Bai to have all necessary servicing and body work performed at Specialty Car Craft, the address for which is the same as the address listed at the end of the agreement.
Bai attempted to add ECA as a defendant, but the court struck Bai's Doe amendment without explanation.
Several weeks before Saghdejian and Bai executed the March 31, 2016 lease assumption agreement, ECA paid Rodeo Concierge $10,000 via a March 3, 2016 check with the notation "rental fee." Both the trial court's settled statement and the parties' proposed settled statement characterize this payment not as a rental fee, but as a "$10,000 referral fee . . . for their [Rodeo Concierge's] services."
It is undisputed that the "Chinese-speaking intermediary" reviewed the agreement with Bai and was present at its execution. The court's settled statement further states that the individual Rodeo Concierge appellants-"automobile accommodators" Attia and Amouchal, the owners of Rodeo Concierge-and the intermediary helped negotiate the agreement on Bai's behalf. During the portion of the trial for which a transcript exists, Rodeo Concierge's owners, Attia and Amouchal, as well as Saghdejian, all testified that none of the Rodeo Concierge appellants received any further compensation in connection with the transaction beyond this $10,0000 payment.
The lease assumption agreement identified Bai as the "New Lessee" and "Steve S/Jannik" as the "Original Lessee." Under the heading "Vehicle Information," it provided the year, make, and model of the vehicle, vehicle identification number, and the notation: "Car currently valued at 175k. Current payoff is [$]157,583.87." The agreement stated the current mileage on the vehicle, and a maximum monthly mileage limit. It indicated, "[t]his vehicle is a personal use only [sic]. Not to be rented or shared. Driver could only Xin bai [sic]."
The financial terms of the agreement required Bai to make the following payments (presumably to Saghdejian as the other signatory of the agreement): an initial $50,000 payment, comprised of a $40,000 nonrefundable "sales commission" and $10,000 "safety deposit," and a $3,000 monthly payment for a maximum of 39 months. The agreement required the vehicle to be "pa[id] off in 39 months" and further provided that "[o]nce the 39 payments are paid, then the lessee has the option to 41000 balloon end of the lease [sic]." Both the court's settled statement and appellants' proposed settled statement characterize this language as providing for an option to buy the vehicle at the end of the lease term by making a $41,000 balloon payment. Bai was also required to furnish and maintain "500 k [sic] liability and uninsured insurance on the vehicle and a [one] million dollar . . . Umbrella."
The trial court's settled statement further stated that "Bai was led to understand that . . . Attia and Amouchal [of Rodeo Concierge] were the owners of the Ferrari," but does not indicate how so, or what testimony led the court to reach this conclusion.
The court's settled statement further states that "[i]t was estimated to the [c]ourt's satisfaction at trial that Bai did not possess a sufficient understanding of English to personally negotiate the transaction or comprehend the roughly-worded English-language contract that was drafted by the defendants and presented to him through[ ] the Chinese speaking intermediary. [¶] . . . [¶] It was Bai's understanding . . . that he was to make [the] payments [under the agreement] to become the 'owner' of the Ferrari." Bai's language abilities are not germane to the enforceability of the contract, nor is his understanding of its terms to the extent that understanding is inconsistent with the plain language of the agreement. (See Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710 ["one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument"]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 ["[i]f [the contracting party] cannot read [English], he should have it read or explained to him"].) For reasons we discuss below, however, we need not and do not rely on this reasoning in affirming the court's judgment as to the Rodeo Concierge appellants, and reverse as to Lorentsen.
On March 31, 2016, Bai paid the initial $50,000 and took possession of the vehicle. Thereafter, the vehicle remained in his possession for approximately 21 months, during which he made 21 monthly payments, totaling $63,000. Some information in the record supports that Bai made these payments to Rodeo Concierge, which then passed on the funds to ECA. The transcript from the punitive damages phase of the trial contains testimony by Lorentsen that no portion of these payments was shared with him.
D. Lorentsen and Saghdejian Discussions Regarding Sale of the Ferrari to Bai
Text messages in evidence reflect that Saghdejian approached Lorentsen in December 2017 asking for the payoff amount on the Ferrari because "[the] [g]uy [Bai] wants to keep it." They further reflect that Lorentsen initially responded by indicating he wanted to keep the vehicle for himself after the sublease was completed. In a December 18, 2017 text message to Saghdejian, however, Lorentsen writes: "I looked it over . . . pay me 10k cash and the car is yours. With your excessive miles etc.... you deal with that. Let me know. Otherwise we can continue till [sic] the end."
E. 2017 Accident and Resulting Insurance Payments
Bai stopped making payments on the vehicle only after "the car was involved in an accident and fire on the freeway on December 22, 2017 and totally destroyed." Rodeo Concierge helped Bai "fil[e] an insurance claim following the car fire." "Most of the [insurance] proceeds [$128,000 were] paid [to] the secured lienholder Murphy Bank." The remaining $38,000 insurance payout was made payable to both Lorentsen and Bai. Bai did not, however, receive any of these funds. Rather, ECA kept $19,786 and Lorentsen kept the remaining $18,000.
F. Bai's Lawsuit Against Saghdejian, Lorentsen, and the Rodeo Concierge Appellants
On June 4, 2018, Bai filed an unverified complaint for damages alleging causes of action for violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) (CLRA), unlawful motor vehicle subleasing, negligent misrepresentation, fraudulent inducement, false promise, civil conspiracy, and alter ego. The complaint sought compensatory and punitive damages and statutory attorney fees.
G. First Phase of Trial (Liability and Compensatory Damages) and September 2019 Judgment
The parties agreed to a bench trial, and the court accepted trial briefs in lieu of opening statements. The first phase of trial (addressing liability and compensatory damages) took place on July 1 and 2, 2019, during which the court heard witness testimony. These proceedings were not transcribed. The court accepted the parties' posttrial briefs in lieu of closing argument.
On September 10, 2019, the trial court issued a 10-page judgment concluding defendants were jointly and severally liable to Bai on all causes of action. In it, the court addressed each cause of action individually, explaining the court's reasoning as to each. Overall, the court concluded that "[t]he transactions between the defendants and [Bai] were unfair and deceptive in every respect. As evidenced by the Lease Assumption Agreement and the defendants' own testimony, each individual defendant is a sophisticated and savvy businessman who apparently viewed plaintiff Bai as an easy mark whose eagerness to be driving around town in a fancy automobile was readily exploited. [¶] The testimony at trial reveal[ed] that Bai lacked sufficient English-language skills and business acumen to comprehend the nature of the transaction .... [T]he Ferrari was a leased car in which Lorentsen had no ownership interest or contractual or legal ability to sub-lease to Bai or anyone else; none of the other defendants had any legal ability to sub-lease the car; either a leasing company or, ultimately, a financing institution, like Murphy Bank, held title to the automobile, a fact unknown to Bai; none of the defendants had any ability to convey title to Bai; the payments made by Bai were unconscionably exorbitant; the . . . requirement that Bai service the automobile through defendants Saghdejian and his company Specialty Car Craft was onerous; the defendants left Bai high and dry with no insurance proceeds after the car was destroyed by fire; and the policy for which Bai paid the premiums was not beneficial to him."
The court awarded Bai $156,786 in compensatory damages, based primarily on the payments Bai had made under the lease agreements, "plus statutory penalties and attorneys' fees to be determined by motion, punitive damages to be determined by evidence presented at a second phase of the trial and costs of suit to be determined by a timely-filed memorandum of costs."
H. Second Phase of Trial (Punitive Damages) and October 2019 Judgment
A certified court reporter transcribed the punitive damages phase of the trial, and the court accepted written briefing as opening statements. Bai, as well as each individual defendant, testified regarding financial issues relating to punitive damages. The court requested, and the parties submitted, written briefs as closing arguments.
Following the close of testimony on October 21, 2019, counsel for Lorentsen inquired as to whether to "request a statement of decision here, or should [counsel] put it [as] part of [counsel's] closing argument." The trial court responded: "You can do it orally if it's less than eight hours. You don't get a statement of decision." The court then added that the trial had been "[p]retty close to eight, but not quite eight" hours.
Lorentsen filed two requests for a statement of decision, one contemporaneous with his closing argument brief in November 2019, and one on February 13, 2020. These requests sought a statement of decision as to both liability and punitive damages. The court did not rule on either request or issue a statement of decision regarding the second phase of the trial.
I. Final Judgment and Motion to Enter a New and Different Judgment and/or Motion for a New Trial
On February 4, 2020, the court filed a 16-page final judgment in the matter, which included the court's previous 10-page judgment, and also awarded Bai punitive damages of $5,000 against each defendant. The Rodeo Concierge appellants moved for new trial and to vacate judgment and enter another and different judgment. Lorentsen moved for new trial as well. Bai opposed each motion. "As a result of the COVID-19 pandemic and the resulting limited operations of the court," the court did not hear oral argument on the motions. On March 24, 2020, the court denied the posttrial motions "for the reasons the court articulated in the written ruling after trial issued on February 2, 2020."
On September 4, 2020, the court entered an amended judgment awarding Bai, in addition to the $156,786.01 in compensatory damages for which the court had previously held all defendants jointly and severally liable, attorney fees of $109,670.07, costs of $5,044.30, and punitive damages of $25,000.00 ($5,000 from each defendant) for a total judgment of $296,500.38.
J. Appeal and Settled Statement
The Rodeo Concierge appellants and Lorentsen timely appealed. Lorentsen's notice of appeal identified only the judgment, and the Rodeo Concierge appellants' notice identified both the judgment and "[a]buse(s) of discretion surrounding issues re[garding] an oral and a written request for Statement of Decision that were ignored, first stating the parties were not entitled, then just ignoring the issue. Due Process regarding word-count [and] oral argument denied." All appellants elected to proceed via a settled statement regarding the first phase of the trial, given the lack of a reporter's transcript for those proceedings.
Lorentsen timely filed a proposed settled statement as required by rule 8.137. The proposed settled statement provided a condensed narrative of the oral proceedings, including witnesses' testimony, exact references to the time when examination and cross-examination began and ended, and references to the relevant trial exhibits discussed during testimony. Under rule 8.137(e), Bai could have filed proposed amendments or objections to the proposed statement, but he did not do so.
Four months later, on October 15, 2020, the court issued an order rejecting Lorentsen's proposed settled statement as "inconsistent with evidence presented at trial." The order provided no further detail as to how the statement was inconsistent with evidence presented, and did not instruct the parties to prepare a revised proposed statement. Instead, on October 21, 2020, the trial court issued its own settled statement on appeal, which it certified that same day. The court's settled statement is identical in almost every respect to the court's February 4, 2020 judgment. It contains factual findings, but does not attribute them to any specific evidence. It neither identifies the witnesses who testified at trial, nor contains any description of any witness's testimony at trial. Instead, the court's settled statement contains conclusory descriptions of testimony, such "[a]s evidenced by . . . the defendants' own testimony" and "testimony at trial reveal[ed]." The statement does not describe any specific interactions between Lorentsen and Bai, or indicate that Lorentsen had any involvement in the drafting or execution of the lease assumption agreement, except to the extent such interaction and involvement can be implied from the following language in the settled statement: (1) "The roughly-worded Lease Assumption Agreement provided to [Bai] by these two defendants [Attia and Amouchal] with the participation of defendant Saghdejian and on behalf of defendant Lorentsen, conceals the true nature of the lease between defendant Lorentsen." (Italics added.) (2) "To one degree or another, each of the defendants, for themselves individually and together participated in the misrepresentations made to [Bai] that induced him to enter the contract that led to the resulting damages to him."
The only substantive differences between the February 4, 2020 judgment and the October 21, 2020 "Settled Statement" are the title of the documents and that the statement does not contain the final paragraph of the judgment, which describes the court's conclusions regarding liability and damages.
In December 2020, the Rodeo Concierge appellants also filed a proposed settled statement that includes detailed descriptions of the content and length of witness testimony presented during the first phase of trial. Counsel for the Rodeo Concierge appellants verified the proposed settled statement under penalty of perjury: "based upon [their] personal knowledge and recollection, written notes taken at the time of trial, and defense counsel conferring with each other." Lorentsen and Saghdejian filed notices of joinder to the Rodeo Concierge appellants' proposed statement. As with Lorentsen's proposed statement, Bai did not file any proposed amendments or objections to the Rodeo Concierge appellants' proposed statement.
The Rodeo Concierge appellants attempted to file their proposed settled statement for several months, but continually encountered filing difficulties, resulting in their statement being filed much later than that of Lorentsen. The court did not, however, reject the Rodeo Concierge appellants' proposed statement as untimely, nor did the court take issue with the timing of the statement.
On April 12, 2021, the trial court issued an order rejecting the Rodeo Concierge appellants' proposed settled statement. The order indicated that corrections were needed for the proposed statement to accurately reflect the evidence presented at trial, and that, to this end, "[a] modified settled statement [was] attached" to the order that had been "[p]repared by the [c]ourt." The court's October 21, 2020 settled statement was attached to the order.
DISCUSSION
A. Appellants' Arguments Regarding the Statement of Decision
Appellants first challenge the court's purported refusal to provide a statement of decision. "In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial." (Code Civ. Proc., § 632; see rule 3.137(d) [addressing procedure and requirements for written statement of decision and judgment].) The final judgment in this matter "explain[s] the factual and legal basis for its decision as to each of the principal controverted issues at trial." (Code Civ. Proc., § 632.) Thus, to the extent the court's failure to provide a document separately captioned "Statement of Decision" constitutes error, any such error is harmless. (See In re Marriage of Seaman &Menjou (1991) 1 Cal.App.4th 1489, 1494, fn. 3 [where "the judgment sets forth the reasons for the award . . . absence of a statement of decision does not hamper our review"].)
To the extent the appellants' argument can be understood as a contention that the judgment was an inadequate or ambiguous statement of decision, this would not affect our ultimate decision on appeal. "When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue." (Code Civ. Proc., § 634; see In re Marriage of Ramer (1986) 187 Cal.App.3d 263, 271 ["statement of decision was grossly inadequate because among other things it did not reveal what if any figures the court determined as representing the parties' income and expenses" such that "no findings should be implied against her under the circumstances"].) Appellants did raise the ambiguity of the judgment with the trial court in their new trial motions. However, even assuming the judgment was ambiguous or inadequate as a statement of decision, we need not rely on inferences in favor of the judgment in order to affirm on the basis we discuss below.
B. Issues Regarding the Settled Statement on Appeal
Appellants also challenge the court's order rejecting their proposed settled statement and instead certifying what was essentially the court's judgment as the settled statement on appeal.
"A settled statement is a summary of the superior court proceedings approved by the superior court." (Rule 8.137(a).) An appellant may elect "to use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter's transcript" (ibid.) if, inter alia, "[t]he designated oral proceedings in the superior court were not reported by a court reporter." (Rule 8.137(b)(1)(A).) "The purpose of a settled statement is to provide the appellate court with an adequate record from which to determine contentions of error." (In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580.) Thus, a settled statement must contain "a statement of the points the appellant is raising on appeal" and a "condensed narrative of the oral proceedings," including "a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant . . . raise[s] on appeal." (Rule 8.137(d).)
A statement of decision and a settled statement on appeal have different core purposes and different requirements. A statement of decision should provide a formal, complete record of the court's reasoning, whereas a settled statement contains only a condensed narrative of the oral proceedings and summary of the evidence and the testimony presented at those proceedings that are relevant on appeal. Our analysis of the statement of decision argument thus does not apply to our analysis of appellants' settled statement arguments.
Any party may serve and file proposed amendments or objections to the proposed statement within a certain time frame (Rule 8.137(e)(1)), and any party may request a hearing within a certain time thereafter. (Rule 8.137(f)(1).) Once the time frame for these actions expires, the trial court is required to do one of the following: (1) "order the appellant to prepare a new proposed statement" "[i]f the proposed statement does not contain material required under [subdivision] (d)," in which case the court's order "must identify the additional material that must be included in the statement to comply with [subdivision] (d)"; (2) "[m]ake any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness relevant to the points" the appellant raises on appeal; or (3) "[i]dentify the necessary corrections and modifications, and order the appellant to prepare a statement incorporating these corrections and modifications." (Rule 8.137(f)(3).) When an appellant elects to proceed with a settled statement on appeal, "full and plenary powers over such a record is reposed in the trial judge, subject only to the limitation that he does not act arbitrarily." (Keller v. Superior Court (1950) 100 Cal.App.2d 231, 234 (Keller), italics omitted.)
Appellants elected to proceed via settled statements on appeal regarding the first phase of the trial, and filed proposed settled statements. Bai neither objected to nor filed proposed amendments to these statements. In refusing to certify the proposed settled statements, the court stated that they were inconsistent with the evidence presented at trial, but did not provide any further details as to how or in what respects. The court thereafter prepared its own "corrected" version of the settled statement. Appellants argue the court's corrected statement does not comply with the requirements of rule 8.137; specifically, that it did not provide any description of the testimony presented or identify the witnesses who testified, nor did it identify the issues appellants raise on appeal. (See Keller, supra, 100 Cal.App.2d at p. 235 [court "cannot arbitrarily refuse to settle the record without disclosing a single item of relevant testimony that was omitted from [or inconsistent with] the proffered statement on appeal"]; id. at pp. 235-236 ["it should be made to clearly appear from the record, and reasons given therefor, why the trial judge was convinced of his inability to settle a satisfactory statement"]; see also rule 8.137(f)(5) [court's corrected statement "must not eliminate the appellant's specification of grounds of appeal from the proposed statement" in preparing a corrected or revised statement].)
But even assuming the court erred, appellants have not properly raised such error, and we have no jurisdiction to award relief correcting it. The long-established rule provides that "mandamus is the proper and exclusive remedy when a trial judge refuses to settle a statement which . . . is his duty to settle ....[Citations.] . . . [A] wrongful refusal to settle a statement is not the subject of appeal, but is to be corrected by a writ of mandate." (Murphy v. Stelling (1903) 138 Cal. 641, 642-643, italics omitted; Keller, supra, 100 Cal.App.2d at p. 236 [writ proceeding].) Even if an order regarding a settled statement were appealable (and it is not), appellants have not appealed the court's order regarding the settled statement. We are thus without jurisdiction to award any relief based on our assessment of error in the court's effective refusal to certify a proper settled statement.
We acknowledge that in Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935-936 the Court of Appeal stated, "To preserve the issue of the denial [of a request for settled statement] for appeal, the appellant may seek writ review at the time of the denial, or raise the denial in the opening brief on appeal," citing to Western States Construction Co. v. Municipal Court (1951) 38 Cal.2d 146 and Keller, supra, 100 Cal.App.2d 231. However, the appellant in Randall did not raise the issue of wrongful denial in her opening brief, and neither of the cases cited in Randall actually addresses the prospect of raising the issue on direct appeal. Thus, the suggestion in Randall is dictum.
An order denying a request for a settled statement is not among the orders listed as subject to appeal in the Code of Civil Procedure. (See Code Civ. Proc., § 904.1.) Nor is such an order appealable as a postjudgment order, because "[t]o be appealable, a postjudgment order' "must either affect the judgment or relate to it by enforcing it or staying its execution." '" (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 133.)
Nevertheless, any such error was harmless as to the Rodeo Concierge appellants. Had the Rodeo Concierge appellants filed a writ petition and been successful, we would have ordered the court and the parties to work together upon remand to create a settled statement that both meets the requirements of rule 8.137 and is approved by the trial court. (See Keller, supra, 100 Cal.App.2d at p. 236 [ordering "that a peremptory writ of mandate issue requiring respondent judge to settle the statement on appeal in accordance with" the opinion].) We cannot know what summary of the testimony and proceedings such a statement would have contained. We do know, however, what the version of that summary most favorable to the Rodeo Concierge appellants would look like: namely, their own proposed settled statement. And, as we set forth in detail in the following sections, regardless of whether we base our analysis on the court's settled statement, or on the Rodeo Concierge appellants' proposed settled statement, the court properly ruled in Bai's favor on the unlawful motor vehicle subleasing cause of action as against the Rodeo Concierge appellants, and that cause of action alone can support the damages the court awarded. Therefore, even assuming the court erred in its approach to the settled statement, and even if we had jurisdiction to correct such error, any such error would be harmless as against those appellants.
Further, because we reverse the judgment as against Lorentsen on the grounds outlined below, any error in the settled statement is harmless as against him as well.
C. Rodeo Concierge Appellants' Arguments Regarding the Judgment
The Rodeo Concierge appellants challenge the court's judgment, raising various arguments regarding several of the causes of action, as well as the compensatory damages award.
1. Unlawful motor vehicle subleasing cause of action
A "lessee under a lease contract" who "suffers any damage proximately resulting from one or more acts of unlawful motor vehicle subleasing, as described in . . . the Penal Code, may bring an action against the person who has engaged in those acts." (Civ. Code, § 3343.5, subds. (a)(6) &(a).) Under Penal Code section 571, subdivision (a), "[a] person engages in an act of unlawful subleasing of a motor vehicle if[, inter alia,] . . . [¶] (1) The motor vehicle is subject to a lease contract . . . the terms of which prohibit the transfer or assignment of any right or interest in the motor vehicle or under the lease contract.... [¶] (2) The person is not a party to the lease contract, conditional sale contract, or security agreement. [¶] (3) The person transfers or assigns, or purports to transfer or assign, any right or interest in the motor vehicle or under the lease contract . . . to any person who is not a party to the lease contract .... [¶] (4) The person does not [first] obtain, prior to the transfer or assignment . . . written consent to the transfer or assignment from the motor vehicle's lessor .... [¶] [And] (5) the person receives compensation or some other consideration for the transfer or assignment described in paragraph (3)." Under Penal Code section 571, subdivision (b), a person also "engages in an act of unlawful subleasing of a motor vehicle" if he is "not a party to the [original] lease contract . . . and assists, causes, or arranges an actual or purported transfer or assignment, as described in subdivision (a)."
The Rodeo Concierge appellants do not dispute that Saghdejian subleased the Ferrari to Bai in violation of Penal Code section 571, subdivision (a), or that the lease assumption agreement reflects an unlawful sublease under that same subdivision. Appellants nevertheless contend that they did not violate the subleasing law. Specifically, Rodeo Concierge appellants contend they acted only as an "intermediary" and were not parties to the lease assumption agreement. But this argument only shields the Rodeo Concierge appellants from liability as persons who engaged in unlawful motor vehicle subleasing by actually subleasing the Ferrari, as required by Penal Code section 571, subdivision (a). It does not prevent them from being persons who engaged in unlawful motor vehicle subleasing under Penal Code section 571, subdivision (b), which requires only that the defendant be a nonparty to the original lease and have "assist[ed]" or "arrange[d]" a transaction meeting the requirements of the preceding subsection. (Pen. Code, § 571, subd. (b); see People v. Carter (1994) 30 Cal.App.4th 775, 780 (Carter) ["one need not personally transfer an interest to be culpable" under Penal Code section 571, subdivision (b)].)
Whether we consider the court's "settled statement" of phase one of the trial, the documentary evidence presented at trial, the reporter's transcript of phase two of the trial, or the appellants' proposed settled statement, we conclude the evidence supports that the Rodeo Concierge appellants "assist[ed]" in the unlawful sublease reflected in the lease assumption agreement. (Pen. Code, § 571, subd. (b).) Specifically, the court's settled statement indicates that the Rodeo Concierge appellants assisted in negotiating the agreement. They dispute this, but acknowledge that they did introduce Saghdejian to Bai as a prospective source for a luxury car, brought the vehicle to Bai the day the agreement was executed, were present when it was executed, and facilitated Bai's payments under the lease. All of these actions constitute the requisite "assist[ance]." (Pen. Code, § 571, subd. (b).)
The Rodeo Concierge appellants further argue that they did not so assist Saghdejian, because they "are nothing like the defendant [found to have assisted in unlawful subleasing] in People v. Carter, who financially stood to benefit from the subleases despite being a non-party to them. They were simply providing a concierge service, which is a completely reputable and legitimate service in the United States of America." (See Carter, supra, 30 Cal.App.4th at p. 781.) But the reasoning in Carter did not rely on whether the defendant benefited from the violation of Penal Code section 571, nor does the statute suggest this is a requisite element of a violation.
Thus, whether we accept the court's settled statement or appellants' proposed settled statement as an accurate characterization of the testimony during the first phase of trial, substantial evidence supports the court's conclusion that the Rodeo Concierge appellants engaged in unlawful subleasing of a vehicle in violation of Penal Code section 571, subdivision (b).
2. Compensatory damages against the Rodeo Concierge appellants
Based on the Rodeo Concierge appellants' violation of Penal Code section 571, subdivision (b), Bai, the individual leasing the vehicle that was the subject of those violations (Civ. Code, § 3343.5, subd. (a)(6)), was entitled to recover from appellants any "actual damages" and "equitable relief, including, but not limited to . . . restitution of money and property; punitive damages; reasonable attorney's fees and costs; and any other relief which the court deems proper." (Id., subd. (b).)
The Rodeo Concierge appellants argue that Bai suffered no damages, because he "got exactly what he bargained for"- namely, use of the vehicle for as long as he made his lease payments, plus the possibility of purchasing the vehicle at the conclusion of the lease term. They also argue that, even if Bai's option to purchase was not legally cognizable at the time the lease assumption agreement was executed, it became cognizable when Lorentsen agreed to sell Saghdejian the car in December 2017, and, in any event, Bai could not have purchased the car at the conclusion of the lease, because it was destroyed by fire before that time. According to the Rodeo Concierge appellants, this means that Bai was no worse off than he would have been, had Saghdejian actually been legally capable of granting Bai an option to buy via the lease assumption agreement.
We disagree. First, the text messages on which the Rodeo Concierge appellants rely do not establish that Lorentsen was legally obligated to sell the vehicle to Saghdejian at the conclusion of the lease assumption agreement. At best, these text messages reflect an offer to sell Saghdejian the car in exchange for a certain sum; they do not reflect acceptance of that offer or payment of that sum in consideration. There is thus nothing to support the Rodeo Concierge appellants' contention that, absent the fire, Bai would have been able to purchase the vehicle. Moreover, that external circumstances would have ultimately prevented Bai from purchasing the vehicle in any event ignores the fact that Bai may not have agreed to the terms in the lease assumption agreement, had he been aware that Saghdejian and ECA had no legal ability to sell Bai the Ferrari because the lease assumption agreement was an unlawful vehicle sublease under the Penal Code.
The Rodeo Concierge appellants' argument that the court's damages award also did not account for the value of what Bai actually did receive-use of the vehicle for 21 months-likewise improperly assumes Bai would have entered into the lease assumption agreement, had it made clear that Saghdejian and ECA had no legal ability to sell him the Ferrari. Without such an assumption, Bai's actual damages can properly be based on the amount he paid under the contract. Moreover, Civil Code section 3343.5 contemplates a wide range of potential damages, including any "equitable relief" and "any other relief which the court deems proper." (Civ. Code, § 3343.5, subd. (b).)
Finally, the Rodeo Concierge appellants argue that they cannot be held jointly and severally liable for the damages awarded by the court. "An obligation imposed upon several persons . . . is presumed to be joint, and not several, except as provided in [Civil Code] [s]ection 1431.2, and except in the special cases mentioned in the title on the interpretation of contracts." (Civ. Code, § 1431.) The Civil Code section 1431.2 exception to the general rule of joint and several liability applies to "non-economic damages" awarded "[i]n any action for personal injury, property damage, or wrongful death." (Id., § 1431.2, subd. (a).) Under such circumstances, "[e]ach defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount." (Ibid.) The Rodeo Concierge appellants rely on this exception, but it is inapplicable, because the instant action is not one for personal injury, property damages or wrongful death, nor did the court award noneconomic damages. "For purposes of [section 1431.2], the term 'economic damages' means objectively verifiable monetary losses"-precisely what the court awarded here in measuring damages based on the amount of payments Bai made under the agreement. (Id., § 1431.2, subd. (b)(1).) The court did not, by contrast, award any amount for "subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation." (Id., § 1431.2, subd. (b)(2) [defining "non-economic damages"].) Thus, the court properly determined the Rodeo Concierge appellants to be joint and severally liable for the compensatory damages award.
Rodeo Concierge appellants do not argue that the exception involving certain types of contractual actions provides a basis on which the court's determination of joint and several liability is erroneous.
3. Other causes of action against Rodeo Concierge appellants
The Rodeo Concierge appellants raise several arguments challenging the court's judgment as to the remaining causes of action. Because we conclude the court correctly determined both liability and damages as against the Rodeo Concierge appellants under Bai's unlawful subleasing cause of action, we affirm the court's judgment as against these appellants without addressing the other causes of action.
D. Lorentsen's Arguments Regarding the Judgment
Lorentsen likewise challenges the court's judgment as against him on all causes of action. As we explain below, we agree the record does not support Lorentsen's liability to Bai under any of these causes of action.
1. Unlawful motor vehicle subleasing cause of action against Lorentsen
We agree with Lorentsen that, as a matter of law, he cannot have engaged in unlawful motor vehicle subleasing under Penal Code section 571, subdivisions (a) or (b), because both require that the defendant "is not a party to the [original] lease contract." The court's settled statement, and all other relevant evidence in the record, establishes that the original lease agreement here is the Amazon lease, and that Lorentson is a party to that lease. He is thus legally incapable of engaging in "unlawful motor vehicle subleasing, as described in . . . the Penal Code," and engaging in such behavior is an element of a cause of action for unlawful motor vehicle subleasing. (Civ. Code, § 3343.5, subd. (a); see Pen. Code, § 571; id., § 572 [the "causing, or arranging of an actual or purported transfer or assignment, of any right or interest in a motor vehicle or under a lease contract, . . . by an individual who is a party to the lease contract . . . is not an act of unlawful subleasing of a motor vehicle and is not subject to prosecution"]; see also Carter, supra, 30 Cal.App.4th at p. 778.)
2. Other causes of action against Lorentsen
The negligent misrepresentation, fraudulent inducement, and false promise causes of action against Lorentsen all require evidence that Lorentsen made a misrepresentation to Bai with the "intent . . . to induce reliance" by Bai. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [false promise]; Ragland v. U.S. Bank Nationals Assn. (2012) 209 Cal.App.4th 182, 196 [negligent misrepresentation]; Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294-295 [fraudulent inducement].) The conspiracy cause of action likewise requires evidence of Lorentsen's intent. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582 [for civil conspiracy cause of action, "knowledge of the planned tort" is insufficient and "must be combined with intent to aid in its commission"].) The documentary evidence in the record does not include any indication that Lorentsen ever made any representations to Bai- or ever communicated with Bai-let alone that he did so with any particular intent. Nor do the documents in evidence suggest Lorentsen intended to assist any of the other defendants in committing any tort against Bai. The court's settled statement indicates that the lease assumption agreement was "on behalf of" Lorentsen. This also is not evidence of Lorentsen's intent; at best, it is a basis on which to infer the other defendants' intents. The settled statement further indicates that "[t]o one degree or another, each of the defendants, for themselves individually and together participated in the misrepresentations made to plaintiff that induced him to enter the contract that led to the resulting damages to him." Even accepting this as an accurate summary of the testimony offered during the first phase of trial-which, for the reasons outlined above, we must-it is insufficient to alone constitute substantial evidence of Lorentsen's intent in making such a misrepresentation or his intent to assist the other defendants in executing the lease assumption agreement. The settled statement contains no other "testimony" that could support such findings. Under the procedural circumstances of this case, we cannot fairly infer from a single, highly general sentence about Lorentsen making some unidentified misrepresentation that Lorentsen thereby intended to induce Bai's reliance or to support a broader effort to mislead Bai- particularly given that there is no evidence in the record about Lorentsen and Bai ever having spoken, and nothing suggesting what, specifically, Lorentsen misrepresented.
Under different circumstances, inferring from a settled statement that testimony not expressly described in the statement was sufficient to support the judgment might make sense. Under the general procedure set forth in Rule 8.137, the appellant is the primary drafter-or at least a co-drafter-of the settled statement. When that is the case, an appellant cannot fairly rely on his own failure to include something in the settled statement to establish a lack of substantial evidence, and inferences in favor of the judgment might make sense. Here, however, such inferences would be inherently unfair, because the court prepared the statement.
Finally, the CLRA cause of action against Lorentsen requires substantial evidence that he employed some "unfair or deceptive act[ ] or practice[ ] . . . in a transaction" with Bai. (Civ. Code, § 1770, subd. (a); Wang v. Massey Chevrolet (2002) 97 Cal.App.4th 856, 869.) Nothing in the documentary evidence or the court's settled statement indicates that Lorentsen was involved in the lease assumption agreement or its execution, and thus there is no evidence that he acted in a deceptive or unfair manner "in [that] transaction." (Civ. Code, § 1770, subd. (a).) This remains true despite the court's characterization of the lease assumption agreement as fundamentally unfair, given that there is nothing in the settled statement (or elsewhere in the record) supporting that Lorentsen was a party to or involved in drafting or executing that agreement.
Thus, we need not accept appellants' proposed alternative summary of the testimony during the first phase of trial or reject the court's settled statement in order to conclude the record cannot support the court's judgment as against Lorentsen on any cause of action.
DISPOSITION
The judgment is reversed as to Lorentsen. In all other respects, we affirm. The trial court is instructed to enter a new judgment consistent with this opinion. Parties are to bear their own costs on appeal.
We concur: BENDIX, J. KELLEY, J.[*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.